Friday, December 11, 2020

TTABlog Test: Is CHINOOKER’D IPA for Beer Confusable With CHINOOK for Wine?

In this Section 2(d) opposition to registration of the mark CHINOOKER’D IPA for beer [IPA disclaimed], Opposer W. Clay Mackey alleged a likelihood of confusion with his registered mark CHINOOK for "“table wine and sparkling wine" and his alleged common law rights in the same mark for beer. The Board, however, found CHINOOK to be generic for beer and therefore Mackey had no such common law rights. But what about his wine registration? As we know, beer and wine are frequently found to be related for Section 2(d) purposes. How do you think this came out? W. Clay Mackey v. Lawson’s Finest Liquids, LLC, Opposition No. 91220846 (December 7, 2020) [not precedential] (Opinion by Judge Marc A. Bergsman).


Genericness of CHINOOK for Beer:  The United States Department of Agriculture (ars.usda.gov) identifies Chinook as a hop varietal. Applicant's expert testified that “Chinook” refers to a variety of hops used in beer, and various articles supported his testimony.

The Board found the genus of the goods at issue to be, not surprisingly, beer and the relevant public to be brewers (commercial, craft, and home brewers), beer distributors, and beer drinkers. The testimony and evidence provided "clear evidence that the relevant purchaser perceives Chinook as indicating a type of beer by referring to a key aspect of that product."

The Board concluded that Chinook "is generic when used in connection with beer because the relevant public perceives the beer as brewed with Chinook hops." Therefore Opposer Mackey did not have any proprietary rights in that word.


Likelihood of Confusion:
The sole issue remaining was whether Applicant’s mark CHINOOKER’D IPA for beer is likely to cause confusion with Mackey's registered mark CHINOOK for table wine and sparkling wine.

The Board found the mark CHINOOK to be arbitrary for wine and therefore inherently strong. As to commercial strength, however, there was insufficient evidence placing Opposer Mackey's sales figure in context, and so the Board was unable to determine the degree of commercial strength of the mark.

Although there was no record evidence of actual confusion despite concurrent use of the parties' respective marks since 2008, this factor was deemed neutral because "the same consumers are unlikely to encounter both products because of their small sales, especially Applicant’s de minimis sales, remote trading areas, and lack of advertising."

As to the relatedness of beer and wine, third-party registration and use evidence suggested that beer and wine may emanate from the same source under the same mark. Applicant introduced 220 sets of third-party registrations for similar or identical marks owned by different entities where one entity has registered its mark for beer and the other entity has registered its mark for wine. The Board, however, found Mackey's third-party registration and use evidence sufficient to support a finding that beer and wine are related products.

Applicant’s third-party registrations have less probative value than Opposer’s third-party registrations because there is no requirement that for goods to be related that all or even a majority of the sources of one product must also be sources of the other products. Therefore, evidence showing only that the source of one product may not be the source of other products does not aid Applicant in its attempt to rebut Opposer’s evidence.


The Board next found that beer and wine are offered in some of the same channels of trade to some of the same classes of consumers. Moreover, because the respective identifications are table wine and sparkling wine and beer without any limitations regarding price, channels of trade, or classes of consumers, the Board must presume that purchasers for these products include ordinary consumers who may buy inexpensive wine and beer on impulse.

Finally, turning to the marks, the Board observed that, because Applicant’s mark incorporates Opposer Mackey’s mark, the marks are similar in appearance and sound. However, the marks have different meanings and engender different commercial impressions. The mark CHINOOK suggests the Pacific Northwest, while applicant’s mark CHINOOKER’D IPA "engenders the commercial impression of getting snockered (i.e., drunk) on a beer made from Chinook hops." "Thus, when used in connection with beer, Chinook means a type of hops and engenders a different commercial impression than Chinook used in connection with wine."

The Board concluded that the difference in the meaning and commercial impression of the marks outweighed the similarities in appearance and sound, and thus that the mark CHINOOKER’D IPA is not similar to the mark CHINOOK.

And so the Board found confusion unlikely, and it dismissed the opposition.

Read comments and post your comment here.

TTABlogger comment: How did you do? FWIW, I thought applicant's mark was a play on "snookered." I never hear of "snockered."

Text Copyright John L. Welch 2020.

3 Comments:

At 11:25 AM, Blogger Eddie said...

"The mark CHINOOK suggests the Pacific Northwest, while applicant’s mark CHINOOKER’D IPA "engenders the commercial impression of getting snockered (i.e., drunk) on a beer made from Chinook hops."

What a load. If I'm walking down the liquor aisle I see basically the same name and think they are related. Your average consumer doesn't do a word meaning history search.

 
At 12:34 PM, Blogger Unknown said...

Another interesting fact noted in the ruling is that the Chinook Hops variety was developed AFTER the CHINOOK Winery was founded in the 1990's.

 
At 3:03 PM, Blogger Stacey Friends said...

I really cannot believe this decision. I think based on past cases (and my own "research" on beer and wine), it would have to be an extraordinary situation where a similar mark for beer and wine would not invite consumer confusion. And this is not it.

 

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